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Principle of the Separation of Powers
The separation of powers is a constitutional principle introduced to ensure that the three major institutions of the state namely; the legislative, the executive and the judiciary are not concentrated in any single body whether in functions, personnel or powers. Legislative is a law-making body, Executive puts law into operation and Judiciary interprets law and settle disputes. Montesquieu, a French writer/philosopher believes that if all three powers were held by the same person, then there would be a dictatorship and arbitrary rule would prevail. Another writer, John Locke mentioned that the three organs of the state must not get into one hand as it may be too great a temptation to human frailty. Aristotle is of the opinion that if the three organs of a state is well arranged, then the constitution is bound to be well arranged. The term separation of powers can be defined in the strict sense and the liberal sense. In the strict sense, separation of powers means that there should be a clear distinction of functions between the three organs of the state and there should also be a check and balance between the three organs. There should not be any overlaps in functions, personnel and powers. In the liberal sense, separation of powers means there could be overlaps in functions and personnel between the three organs but there should also be checks and balances between the three organs. To see how and whether the separation of powers is practised, we would look at the relationship between first, the executive and legislature, secondly, the legislature and judiciary and, thirdly, the executive and judiciary in three countries; the United Kingdom (UK) , Malaysia and Australia to compare them. Executive and Legislature In UK, the government personnel is provided by the Parliament. The Prime Ministers and the ministers of the Crown must be members of either House of Parliament. The powers of government are scrutinised by the Parliament. However there is some limitation to that under the House of Commons Disqualification Act 1975 which only allows certain people to hold the parliamentary office and there is also limitation to the number of government ministers to the House of Commons. Despite that, the government will still have automatic support of 120 members of the Parliament. The operating period for the government depends on Parliament. We can also see the interference of executive in parliament through delegated legislation as the legislative functions is exercised by the executive and not the parliament. A vote of no confidence against any government policy can result in the downfall of the government. The Opposition will oppose or support the government based on how they govern the country. Question Time, debates and Select Committees are part of checks and balances which help to ensure the accountability of government to parliament in any matters. Election is a way which citizens can use to object or agree with the government by voting. In Malaysia, it is quite similar to the UK’s. It follows the Westminster system in UK. There is no distinction between the executive and the legislative due to the Cabinet type of organisation. The ceremonial executive which is the YDPA, is an integral part of the parliament. The Prime Minister and his Cabinet in the executive are also required to be members of either House of Parliament. Similar to the UK’s the interference of the executive in parliament can be seen from delegated legislation. As for the interference of parliament in the executive, it can be seen through parliamentary procedures such as the question time, debates and select committees. In Australia, it is based on the UK’s and US’s model of government; Westminster system and responsible government. Therefore, the overlaps between the executive and the parliament are quite similar to the UK’s. However, the executive in Australia has been heavily involved in making the law compared to the legislature. The Constitution the government ministers to be members of the Parliament. The executive is responsible to the parliament. Legislature and Judiciary In UK, Parliament is not allowed to discuss certain issues if it has yet to be brought to court for trial. Parliament also cannot criticise judges. However, since UK adopts Parliamentary Supremacy; parliament has powers to influence the judiciary. Parliament can dismiss any court decision through legislation and judiciary is supposed to interpret the legislations passed by the legislature. Judges are also said to play the function of legislature by applying the doctrine of precedent and by interpreting statutes through statutory interpretations. Basically judges gives meaning to statutes passed by legislature and the meaning given might not be what was intended in the first place. Therefore, judges are also said to make law and in cases where there is no law for certain areas, with such cases before them; judges would have to come up with a reasonable new principles. In Malaysia, there is no overlap in personnel between the legislature and the judiciary but there is overlap in functions. The enforcement of breach of parliamentary privilege and contempt of parliament which can be exercised by the parliament is said to have overlaps the role of judiciary. Courts cannot question the validity of any proceedings in parliament or by any committees. Similar to UK’s judiciary is said to perform functions of legislature through judicial precedent. In Australia, the State Supreme Courts judges have the powers to make delegated legislation but those concerns the Rules of the Supreme Court and District or Country Court. Besides that, judges of Supreme Court or Chief Justice do play a part in the formation of new parliaments where they swear in the new members of parliament. Executive and Judiciary In UK, the prerogative is part of the common law. Judges actually define the existence and scope of the prerogative. Apart from that the Law Officers of the Crown such as the Attorney General and the Solicitor General are members of the government. The Law Officers duty is to advise the government and ministers. Judicial review is a way that can be exercised by the courts to ensure that executive do not abused their powers and as a means to uphold the rule of law. Judicial review by the courts as a way of checking on executive is also said to be a kind of overlap between the judiciary and the executive. The interference of executive in judiciary can be seen in the powers of the executive to appoint judges. In Malaysia, the executive has always has control over the government so much so it has affected the judiciary, being the weakest among the three organs. The power of the judiciary is also very restricted due to the recent amendment of the constitution. The executive in Malaysia also appoints judges for Federal Court, Court of Appeal and of High Courts. Members of the judiciary have a great link with the executive. The executive has the discretion to transfer the Attorney-General who is part of the executive from the Bench to the AG chambers and the government department. Chairpersons of administrative tribunals can range from administrators to politicians with no proper qualifications. In Australia, there can be no overlap in personnel between the executive and the judiciary which is similar to UK’s and Malaysia’s. Overlap as to functions, there is no clear distinction that there can be no overlap. In other words, the judiciary may perform the functions of the executive. Conclusion All in all, as compared between the three countries, the doctrine of separation powers is only theoretically and in reality; it is not really practised. The judiciary should be independent and neutral to protect the rights and liberties of the people. There should not be any influence or pressure from any parties but in this case, the executive appoints the judges. The executive on the other hand, should not have so much power as to appoint judges that may be on their side and legislature should not have the power to make any law they like. This is to prevent the abuse of powers by the organs which may affect the rights and liberties of the citizens. For instances in Malaysia, the rights and liberties of the citizens provided in Article 5 to 13 of the Federal Constitution can be removed by Article 149 and 150 in cases of emergency. And most of the situations which allows for the basic rights and liberties of the citizens is not clearly defined. It is therefore ambiguous and is up to the discretion of the government. In some cases, overlapping between the three organs is unavoidable. Ways to balance things up is through check and balances but only if it is strictly and regularly practised. For an example in Malaysia, the ruling party which forms the government always has the support of the majority which enables a law to be passed easily and those present in the parliament during debates, question time (check and balances) are always the members of ruling party in majority. The ruling party also have many ways to maintain their positions as ruling party and avoid being accountable by using party whip, gulotin and kangaroo. The judiciary has not much power and is quite badly affected by the 1988 crisis. The Judiciary should be given more powers to enable them to perform their functions neutrally and independently without fear or favour by any parties. That way, they can check on legislative and executive more effectively. Since overlapping is unavoidable, it is important to have effective checks and balances to protect the rights and liberties of the citizens. Important Information for UK Law Students The introduction of the upcoming SQE (Solicitors Qualifying Examination) will almost certainly impact on anyone entering the profession in the next few years and may even shake up the current academic landscape for entry into the profession.